Materials published here have a working paper character

Studies & Analyses No 353

Materials published here have a working paper character. They can be subject tofurther publication.The views and opinions expressed here reflect the author point of view and notnecessarily those of CASE Network.

This work has been prepared within the framework of the ENEPO project (EU EasternNeighbourhood: Economic Potential and Future Development), financed within theSixth Framework Programme of the European Commission.The content of this publication is the sole responsibility of the authors and can in noway be taken to reflect the views of the European Union, CASE or other institutions theauthor may be affiliated to.

Keywords: European Neighbourhood Policy, Justice and Home Affairs, Neighbouring

Policies, ENP Action Plans, Extra-territorialisation, Security, Borders, Irregular

Immigration.

Jel codes: K40, J61

Graphic Design: Agnieszka Natalia Bury

© CASE – Center for Social and Economic Research, Warsaw, 2007

ISBN 978-83-7178-448-4EAN 9788371784484

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This report is part of the CASE Network Studies and Analyses series.

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Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1. ‘Policy discourses’ surrounding the JHA elements in the ENP: Security versus

common values and socialisation? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

2. The logic and objectives underlying the JHA sections of the ENP . . . . . . . . . . . . . 12

3. Extra-territorialisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

4. Policy measures contained in the ENP Action Plans . . . . . . . . . . . . . . . . . . . . . . . . 16

4.1 ‘Benchmarking and monitoring’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

4.2 Transfer of legal and institutional models to non-member states . . . . . . . 19

4.3 Funding and technical assistance for JHA activities in the ENP . . . . . . . . 21

4.4 Inter-governmental negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

4.5 Two mini-case studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

4.5.1 Irregular Immigration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

4.5.2 Terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

5. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

6. Policy Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Annex I. Legislative approximation efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Annex II. Funding the JHA elements in ENP countries . . . . . . . . . . . . . . . . . . . . . . . 37

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Nicole Wichmann


Abstract

This paper claims that the European Neighbourhood Policy (ENP) of the EU, andin particular the elements related to justice and home affairs (JHA), is a complex,multilayered initiative that incorporates different logics and instruments. To unravelthe various layers of the policy, the paper proceeds in three steps: firstly, it lays outsome facts pertaining to the origins of the ENP, as its ‘origins’ arguably account for anumber of the core tensions. It then presents the underlying logic and objectivesattributed to JHA cooperation, which can be derived from the viewpoints voiced duringpolicy formulation. The paper goes on to argue that despite the existence of differentlogics, there is a unifying objective, which is to ‘extra-territorialise’ the management of‘threats’ to the neighbouring countries. The core of the paper presents the variouspolicy measures that have been put in place to achieve external ‘threat management’.In this context it is argued that the ’conditionality-inspired policy instruments’, namelymonitoring and benchmarking of progress, transfer of legal and institutional models tonon-member states and inter-governmental negotiations, contain socialisationelements that rely on the common values approach. This mix of conditionality andsocialisation instruments is illustrated in two case studies, one on the fight againstterrorism and one on irregular migration. Finally, the paper recommends that the EUdraft an Action-Oriented Paper (AOP) on JHA cooperation with the ENP countries thatindicates how the EU intends to balance the conflicting objectives and instruments thatare currently present in the JHA provisions of the ENP.

THE INTERSECTION BETWEEN JUSTICE AND HOME AFFAIRS...


Nicole Wichmann works as a Research and Teaching Assistant at the University ofucerne, Switzerland. From October 2006 to July 2007 she was the Early Stage MarieCurie Visiting Fellow at the Centre of International Studies at the University ofCambridge. She has previously worked as a Research and Teaching Assistant at theUniversities of Berne and Lucerne and at the Graduate Institute for PublicAdministration in Lausanne, Switzerland. Her research projects include the 'EU as arule of law promoter in the European Neighbourhood Policy' and the 'Inside-Out'project in the NEWGOV consortium. Her fields of expertise are the external dimensionof JHA policies, EU Switzerland relations and the politics and policies of migration.

Nicole Wichmann


Introduction

This paper deals with the justice and home affairs (JHA) elements of the EuropeanNeighbourhood Policy (ENP). It refutes the core argument advanced by some analyststhat the ENP is essentially a comprehensive cross-pillar security initiative1 by showingthat its objectives as well as its instruments are also inspired by common values. Thisis not to deny that the JHA and security elements play a pivotal role in the ENP as awhole, for they definitely do. The assertion that it is all about security, however, is toosimplistic. This paper claims that the ENP, and in particular the JHA elements, is acomplex, multilayered initiative that incorporates different logics and instruments. Indissecting the various layers, which is the main objective of the paper, we draw on thefindings contained in the literature on the external aspects of JHA and on the ENP2.

This paper proceeds in three steps. Firstly, it lays out some facts pertaining to theorigins of the ENP, as its ‘origins’ arguably account for a number of the core tensions.It then presents the underlying logic and objectives attributed to JHA cooperation,which can be derived from the viewpoints voiced during policy formulation. Finally,the paper goes on to argue that despite the existence of different logics, there is aunifying objective, which is to ‘extra-territorialise’ the management of ‘threats’ to theneighbouring countries. Didier Bigo and other scholars have argued that the specificmanner in which JHA cooperation was institutionalised within the EU led to theconsideration of a broad range of internal security threats under one and the sameheading . Hence, JHA actors were responsible for managing a ‘broad spectrum ofissues’ ranging from terrorism, drugs and crime to the rights of asylum seekers andclandestine migration. The term ‘security continuum’ describes this broadunderstanding of threats. The external dimension of JHA also addresses the entirespectrum. The core of the paper presents the various policy measures that have beenput in place for external ‘threat management’. In this context it is argued that the’conditionality inspired policy instruments’ of monitoring and benchmarking ofprogress, transfer of legal and institutional models to non-member states and inter-governmental negotiations are accompanied by socialisation instruments. The mix ofthe two logics of action will be explicated in two case studies, one on the fight againstterrorism and one on irregular migration.

Generally speaking, the paper addresses the question of the EU’s actorness withrespect to JHA in the neighbourhood. To assess actorness, we scrutinise the objectives

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1 This argument can be found in Cremona & Hillion (2006) and Lynch (2006)[0].2 For texts on the external dimension of JHA, see Berthelet (2007), De Kerchove & Weyembergh (2003),

Jeandesboz (2007), Knelangen (2007), Lavenex (2005), Occhipinti (2007), Rijpma & Cremona (2007),Trauner (2007), Wichmann (2007) and Wolff (2006b) [0].

and policy instruments contained in the JHA sections of the ENP. The reasoningunderlying this choice of focus is that an actor is expected to devise appropriatemeans to reach certain stated objectives. It will be shown that the requirement ofactorness is only partially fulfilled, as the policy measures promoted respond to bothsecurity and common values objectives, and draw on both conditionality and sociallearning instruments. As a consequence a creative tension arises between the variousobjectives and instruments inherent in JHA cooperation with the ENP countries. Themain objective promoted from the security perspective is that of punctuallystrengthening the repressive state functions, whereas the socialisation discourseemphasises the long-term objective of enhancing the democratic structures of a state.In terms of the policy instruments this tension is mirrored in the reliance on bothconditionality and socialisation-inspired instruments.

The main policy recommendation flowing from this paper is that the EU shouldexplicitly engage with the question of actorness in the ENP by drawing up an Action-Oriented Paper (AOP) on JHA cooperation with the ENP countries which enumeratesboth the objectives and the policy instruments available in this area. An AOP on theENP countries would need to take into account both the JHA external dimension‘security’ objectives, while simultaneously engaging with the questions of securitysector governance and the human rights compliance records of the partner countries.It should also provide an overview of all of the policy measures currently used in therelations with the ENP countries. By attempting to match the strategic objectives andthe available instruments in one policy framework, the EU would take an importantstep towards affirming itself as an international actor. To avoid contradiction,guidelines would need to be formulated on how to deal with possible trade-offsbetween conflicting objectives.

The analysis focuses on the various Action Plans of the ENP in pursuit of a two-fold objective: to present the Action Plans concluded with the ENP countries in acomparative perspective and to illustrate some of the instruments in-depth to showwhat they cover. The illustrations are based on the Action Plans adopted withMorocco, Moldova, Tunisia and Ukraine. The four countries were selected, becausethey have long-standing relations with the EU, and because they are all interested indeepening their relations with the EU. Moreover, this country sample allows us topresent some interesting variations as to how the policy is being implemented inpractice. This paper is the result of an intensive study of ENP documents and a seriesof semi-structured interviews conducted by the author with policy makers in Brusselsduring a stay at CEPS in April/May 2007.

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1. ‘Policy discourses’3 surroundingthe JHA elements in the ENP: Security versus common valuesand socialisation?

The political science literature on the ENP has mainly focused on the question ofwhether the ENP applies the methods of enlargement to countries without amembership perspective or whether it constitutes a ‘cross-pillar’ comprehensivesecurity initiative. Both strands of literature construct their arguments by relying onthe policy formulation stage. There appears to be a broad consensus amongacademics that the birth of the ENP was the result of a process of inter- and intra-institutional bargaining. The main discussions centred on which countries should becovered and what should be offered to the non-member states states (Del Sarto &Schumacher, 2005). The result of this bargaining process was a broad geographicalcoverage, which extended the reach of the policy to all ‘neighbouring countries’without a membership perspective4, with the exception of Libya, Syria and Belarus.The incentives offered to the non-member states differ a lot from country to country.

The origins of the ENP are to be found in a number of discussions that took placein 2002. One of the most important inputs into the discussion was the letter writtenby Jack Straw, former British Foreign Minister, to his colleague, J. Piqué, ForeignMinister of Spain, which held the EU presidency at the time . The letter isunambiguous in asserting the security motivations that should drive the EU’s policytowards its ‘New Neighbours’; it qualifies the Neighbourhood as both a source and atransit zone of ‘soft security’ threats to Europe. The speeches delivered by RomanoProdi in 2002 and 2003 on the ENP convey a different message, which more closelyresembles the conceptualisation of the ENP as a socio-economic transformationproject. In line with this latter view, the policy towards the ‘New Neighbours’ shouldbe based on the principle of partnership5. Analysts have come to agree that, as timepasses, the security-related features of the ENP became more accentuated. There area number of reasons why the ‘security rationale’ was strengthened during subsequentphases. Among them figured the adoption of the European Security Strategy inDecember 2003, the occurrence of inter-institutional differences between the

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3 Policy discourse is used as a term that covers the major policy instruments and the statements made by policy-makers. It is not used to describe the method of ‘discourse analysis’.

4 Hence the EFTA states, the Western Balkans and Turkey are not affected by the initiative. Russia refused to beconsidered a neighbour and hence it negotiated the Common Spaces with the EU.

5 Two articles on the origins of the ENP should be mentioned here (Jeandesboz, 2007; Johansson, 2007).

Commission and the Council in spring 2004, and a broadened intra-institutionalconsultation process within the Commission. As a consequence of this broadenedintra-institutional consultation, a wider spectrum of sectoral Directorate Generalsbecame involved in the drafting process . The security approach advocates that the EUshould coerce partner states into acting as ’gatekeepers’ to prevent the spill over ofsecurity threats into the EU. As mentioned previously, it is not the purpose of thispaper to deny the enhanced security rationale embedded in the ENP; rather, it refutesthe idea that the ENP is only about security. The argument is sustained by showingthat even the most security-relevant provisions of the ENP, namely those related toJHA, contain remnants of the ‘common values and socialisation’ policy discourse(common values and socialisation approach).

A further reason for rejecting the uni-dimensional security reading stems from theconviction that the EU is engaged in a strategy of ‘depoliticising’ the discussions onJHA issues in the relations with non-member states6. Evidence for the de-politicisationstrategy can be found on both the institutional level, for example the decision to assignthe responsibility for dealing with JHA questions to a Sub-Committee of internalsecurity experts instead of a political body, and on the substantive level, where we findnumerous attempts to discuss political problems in technical terms. The pressureexerted on Moldova to adopt a new Customs Regime imposing registrationrequirements on companies domiciled in Transnistria, and the launching of the EUBorder Assistance Mission (EUBAM) are attempts at devising technical solutions tothe Transnistria conflict (Sushko, 2006)7. The EU’s preference for a strategy of de-politicisation results from its own ‘integration’ experience. We need to note from theoutset that the success of this strategy heavily depends on the willingness of thepartner country to engage with the EU’s terms of dialogue.

The JHA sections in the ENP also have to be understood in the context of thedevelopment of an external dimension of JHA. It is interesting to note that thediscourse surrounding the external aspects of JHA is characterised by the sameambiguity as the ENP, and this is the reason why it perpetuates the tensions identifiedpreviously. By and large the development of the external aspects of JHA has beencharacterised by, on the one hand, the insertion of JHA clauses in the broader externalrelations framework, and on the other hand, the adoption of JHA-specific externalinstruments. That these two developments are not inherently complementary has beenpointed out by a number of analysts . In terms of the inclusion of JHA elements in theexternal dimension framework, we have witnessed the progressive inclusion of JHAcooperation clauses in all agreements with non-member countries since the

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6 This argument draws on the discussions I have had over the last two years with Prof. S. Lavenex and Dr D.Lehmkuhl and the findings of our joint research project NEWGOV (Lavenex et al., 2007).

7 Sushko (2006) provides interesting background information on the EUBAM.

conclusion of the Partnership and Cooperation Agreements in the early 1990s. Inparallel to the progressive development of the Area of Freedom, Security and Justiceinternally, a broadening of the scope of the JHA clauses in agreements with non-member states has occurred. The JHA clauses in the most recent AssociationAgreement, concluded with Algeria, are exemplary with respect to thecomprehensiveness of the issues covered8. We have also witnessed the adoption of‘JHA’-specific external instruments, such as the Action Plan on Organised Crime withRussia, the Action Plan on JHA concluded with Ukraine, or the Valencia RegionalAction Programme (Council of the European Union, 2000; 2003; Presidency, 2002).On the whole the activities in the external dimension have been driven by the EU’ssecurity priorities, both in terms of issues and countries covered. At the end of 2005,a more strategic vision, expressed in the 2005 Commission Communication on theexternal dimension of JHA and the 2005 Council Strategy, came to complement theproblem-driven and piecemeal case-to-case approach, which had dominated theexternal dimension of JHA until then (Council of the European Union, 2005;European Commission, 2005a).

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8 For an overview of how JHA has been inserted into the relations with basically all countries on the globe, seeTrauner (2006).

2. The logic and objectives underlyingthe JHA sections of the ENP

This section advances the argument that the ambiguities resulting from the variouspolicy discourses are reflected in the logic and objectives underlying the JHA sections ofthe ENP. One of the basic assumptions underlying this argument is that among all policyareas figuring in the ENP, JHA is the one area in which the existence of the two policydiscourses has a direct impact on actions. The reason for this is that no other policy areais so directly linked to the presence of ‘shared values’. It has been claimed that themanner in which a state exercises its prerogatives in the area of JHA is one of the mosttelling indicators of the nature of a political regime. Therefore, cooperation on JHAmatters with a non-member state should be made contingent on the existence of sharedvalues . The policy discourse of the ENP as a transformation project engages directlywith this imperative, as it advocates establishing security and stability democratisationand rule of law promotion in the partner countries. This approach is reflectedprominently in the Country Reports, which the Commission adopted prior to the ActionPlans. The latter devoted a lot of space to listing the deficiencies of the partner countriesin the core areas of democracy and rule of law. In the ENP Action Plans we thereforefind a number of provisions on strengthening the judiciary and eradicating corruption.Nevertheless, the detailed actions in the Action Plans and the first progress reportsreveal that – particularly in relations with the Mediterranean countries – the EU is notserious about progress on these questions (Del Sarto et al., 2006). This half-hazardstance on rule of law and democracy issues is worrying, if one takes into account themixed record of the neighbouring countries on rule of law and democracy questions andthe EU’s attempts to strengthen cooperation with these same countries on JHA issues9.

The reason why the EU is keen to improve cooperation with the neighbouringcountries on internal security questions is the high degree of security interdependenceit is experiencing with the Neighbourhood (Lavenex, 2004; Occhipinti, 2007). Whenexamining the organised crime reports, this threat perception becomes apparent,provided that the reports point to the pivotal role that the neighbouring countries playas source and transit countries of security threats to the EU (Council of Europe, 2004;Europol, 2004a). Hence there is a strong ‘functional’ argument that the EU shouldengage more substantively with these countries in order to prevent the spill over ofinsecurity to the EU (Knelangen, 2007: 266). This reasoning underlies the JHA actions

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9 The results are at best mixed, with the possible exception of Ukraine and Georgia. This message is clear, whentaking a look at the governance and rule indicators established by the Bertelsmann Transformation Index,Freedom House or the World Bank governance indicators.

that call for targeted capacity-building in the area of border management and theenhancement of non-member countries’ risk analysis and information-gatheringcapacities. These very concrete, short-term and punctual measures aim to enhance thenon-member states’ capacities in managing threats to the EU’s security in the shortterm. They do not, however, engage in questions of ‘security governance’ or theoversight of the security sector (Kahl, 2006: 298; Tanner, 2005). In other words, onecould claim that activities launched under the JHA external dimension can eitherreinforce the repressive elements, which constitute the power basis of autocraticregimes, or they can contribute to fostering state structures based on the respect forthe rule of law and democracy.

It is beyond doubt that a policy framework that has been influenced and motivatedby various interests and imperatives, such as the JHA sections in the ENP, sends outcontradictory messages to the neighbouring countries. What is worrying is not the factthat there are tensions; these are probably unavoidable. Nevertheless, it would bedesirable that the European institutions formulate political guidelines on how to dealwith the ‘inherent’ pay-offs between the long-term ‘security through democracy’strategy and the short-term one of ‘enhancing a partner country’s capacities tomanage threats to the EU’s security’ . In the absence of such guidelines, tensions willarise between the EU’s long-term strategy of eliminating the root causes of securitythreats by promoting democracy and the rule of law, and the short-term requirementsof cooperating with autocratic regimes in the fight against terrorism and illegalimmigration . Since we cannot identify any guidelines, we are led to conclude that theimplementation of the JHA provisions will constitute a credibility test for the EU asan international actor in the Neighbourhood. In other words, implementation willreveal which considerations prevail.

This leads us to formulating the policy recommendation that the EU should drawup an AOP on JHA cooperation with the ENP countries outlining the cooperationobjectives in this area. The document should spell out, on the one hand, the JHAexternal dimension cooperation objectives and on the other hand, it should addresshuman rights and rule of law compliance and the security sector governance situationin the respective partner country. The AOP should also contain some guidelines onwhich trade-offs are to be made between the security and the norms promotionobjectives and the various instruments. A further reason why the EU should draw upan AOP is that it would consolidate in one document both the objectives and theinstruments of JHA cooperation with the ENP countries. Such a framework isnecessary, because one prerequisite of actorness is a manifested attempt to matchpolicy objectives with instruments. In the process, the EU should also attempt toeliminate as many inconsistencies as possible to make its actions more coherent.

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It is interesting to note that the AOPs are unilateral instruments, and hence theyprimarily reflect the EU’s security interests10. The predominantly security-orientedapproach advocated in the AOPs can be seen as an expression of the EU’s ambition toextra-territorialise the management of security threats to partner countries, a strategythat we present in the next section. Nevertheless, one needs to be aware of the factthat although there exists a unified aim to ‘extra-territorialise’ the management ofthreats, the EU relies on two opposing logics of action, conditionality and sociallearning, to realise its ambitions. The measures through which the EU seeks toachieve these objectives will be presented in the subsequent sections of this paper.

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10 The unilateral nature derives from the fact that they are Council adopted instruments that are not submitted toapproval by the partner countries. The security motivations become apparent, when considering the issues andcountries mentioned in the AOPs adopted to date (organised crime in the Balkans, drugs from Afghanistan,organised crime in Russia). The AOP seem to reflect the threat perceptions contained in the internal securityreports issued by the security agencies of the EU and the member states (e.g. Europol, BKA, etc.).

3. Extra-territorialisation

In the academic literature one finds the terms ‘external governance’ and‘externalisation’ to describe how European norms and rules produce effects beyondthe EU’s borders (Lavenex & Uçarer, 2004; Rijpma & Cremona, 2007: 9). The term‘extra-territorialisation’ was developed by Cremona and Rijpma to describe “themeans by which the EU attempts to push back the EU’s external borders or rather topolice them at distance in order to control unwanted migration flows” (Rijpma &Cremona, 2007: 10). For the purpose of this paper the scope of the definition needs tobe extended to the management of all security threats, provided that a similarassumption underlies all JHA external activities. There are different ways in whichextra-territorialisation can occur: firstly, it refers to action taken by the EU itself,independently of non-member states, that can have effects on the legal order of non-member states and their nationals11. Secondly, it may take place in a context ofexternal Community action12. And in the context of the EU’s relations with thepartners, it may describe the promotion of the EU’s own acquis towards non-memberstates, and their adoption of it into their own legal order . The conceptual approachof ‘extra-territorialisation’ has the merit of grasping what the EU is attempting toachieve in the JHA sections of the ENP.

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11 Examples cited in this context are the EU’s visa policy or the rules on carrier sanctions (Cremona & Rijpma,2007: 11).

12 In this context, liaison officer networks, the determination of safe non-member states, the conduct of jointFrontex operations and the need for third countries to cooperate with the EU to return their nationals arecited (Cremona & Rijmpa, 2007: 12).

4. Policy measures containedin the ENP Action Plans

This ‘core’ section of the paper presents the policy measures that are contained inthe JHA sections of the ENP Action Plans. The measures will be classified accordingto a categorisation applied by Florian Trauner – who had taken over from HeatherGrabbe – to JHA cooperation with the countries of the Western Balkans (Trauner,2007; Grabbe, 2003)13. In the literature on the ENP there is a wide spread consensusthat the EU is attempting to emulate the use of the conditionality approach in itsrelations with the ENP countries (Cremona, 2005; Tulmets, 2007). Conditionality canbe used in the context of the membership prospect, at the sectoral level, or at theproject level. In the case of sector or project conditionality, the EU links the grantingof (financial) incentives to the commitment of the partner country to carry out certainpolitical or administrative reforms. The ENP’s documents differentiate betweennegative conditionality and positive conditionality. Positive conditionality is based onthe idea that the EU offers rewards to non-member states for fulfilling reforms,instead of threatening to withhold a promised benefit in case of non-compliance. Asthe membership prospect is absent in the ENP, the EU needs to increasingly rely onpositive conditionality to entice states to move closer to European standards.

Since enlargement is considered by many as the most successful foreign policy ofthe EU, it is obvious that the EU tries to emulate elements of this policy in its dealingswith countries outside the circle of the accession countries . During enlargement theEU used both logics of action, whereby that of conditionality seems to have prevailedin fostering adaptation pressures (Kelley, 2004; Schimmelfennig & Sedelmeier, 2005).We allege that in the case of the ENP, conditionality is the dominant logic of action,but that we also find socialisation elements. This argumentative step moves us awayfrom the analysis conducted by Trauner, who presents the instruments deployed in therelations with the Western Balkans countries as based exclusively upon conditionality(Trauner, 2007). Conditionality stipulates that actors act in accordance with a ‘logic ofconsequentiality’, which means that the decision whether or not to cooperate with theEU is the consequence of a partner country conducting a cost/benefit analysis (March& Olsen, 1989). The alternative logic of action, i.e. socialisation, stipulates that non-member states can be enticed to follow the EU’s model, because they identify with thevalues and norms promoted by the EU. The logic of socialisation is based on the beliefthat actors change their conduct in accordance with the ‘logic of appropriateness’.

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13 An alternative way to classify these measures is the use of the external governance approach that we have beendeveloping in the framework of the Newgov project. See Lavenex et al. (2007).

There is a broad consensus in the literature that for the ENP to be successful in theabsence of the membership prospect, the EU needs to increasingly rely on this type ofinstrument, at least with respect to the political elements (Jones & Emerson, 2005: 18-19). In the JHA area, social learning is used both as a vehicle for fostering normadoption and compliance, and to enhance the level of policy implementation.

Efforts to transfer the EU’s approach to internal security to the ENP countriesthrough soft measures and learning can be detected at all levels. In the context ofbenchmarking and monitoring, the socialisation element manifests itself through thesearch for a common understanding of internal security and security threats. Whenpromoting legislative and institutional models to partner countries, socialisation is usedto discuss the needs and the approximation wishes of the partner countries. Technicalassistance or capacity-building by definition intends to trigger social learning effects.Lastly, through negotiations the EU attempts to change the cost/benefit calculation ofthe partner country. As the EU cannot withhold or grant membership to the ENPcountries, it needs to modify the incentive structure that the partner country is facingwithin the area of JHA. In other words, the EU needs to make cooperation on JHA issuesmore attractive for the partner countries. To achieve this objective, the EU devises amixture of measures drawing on socialisation and conditionality, as we will show in thetwo mini case studies on irregular migration and terrorism.

4.1 ‘Benchmarking and monitoring’

The ENP Action Plans are meant to incorporate the principles of benchmarking.The EU first experimented with benchmarking in the area of employment policy.Raffaella Del Sarto has defined it as follows: "benchmarking is a system that aims atcomparing in a systematic manner organisational processes and/or performanceswith the objective of improving these processes and thus creating new and (higher)standards (Del Sarto et al., 2006: 14)." The ENP has introduced benchmarking intothe realm of the EU's foreign policy (Tulmets, 2007). In the context of externalrelations the term is firstly, associated with the idea of continuous evaluation andcomparison between the participants in the process; secondly, it relies on clearpre-determined criteria, in particular goals and objectives for evaluating progress,and thirdly, it draws on soft law (Del Sarto et al., 2006: 14 ff.). The ENP Action Plansincorporate some of the features of benchmarking, because they contain precisecommitments that the partner countries seek to attain over a given time frame (short,medium or long term). The Action Plans were elaborated based on the EuropeanCommission's Country Reports.

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The ENP Action Plans reflect the priorities expressed by the EU and the partnercountry. Participants in the negotiation process confirmed that both sides had a sayin defining the priority actions in the Action Plans14. In the area of JHA, the priorityactions concern ‘readmission’ and migration management. Border management isalso listed as a priority in the relations with Morocco, Ukraine and Moldova. In theMediterranean countries there are numerous references to intensifying the fightagainst terrorism. The strengthening of rule of law, and of administrative andjudiciary capacity also features as a priority action in all of the Action Plans. In termsof wording and targets we find more precise formulations in the sections on bordermanagement and enhancing security than on governance-related matters. Moreover,the first two years of implementation have revealed a focus on the security questions,provided that agreements on readmission/visa facilitation have been initialled withboth Ukraine and Moldova. In addition, the border management mission (EUBAM)was launched in Ukraine/Moldova, and the dialogue on terrorism with theMediterranean countries has intensified (European Commission, 2006a). Theprogress in terms of rule of law, political and administrative reforms has been slowerin all of the partner countries.

The ENP Action Plans are not legally binding; they complement the provisions ofthe Association and Partnership and Cooperation Agreements as ‘soft law’. Themonitoring of progress has both bilateral and a unilateral elements. On the bilaterallevel the bodies established under the Association Agreements (AA) and thePartnership and Cooperation Agreements (PCA) are responsible for discussingprogress. There is also a unilateral component to monitoring progress under the ENP,in that the Commission draws up regular implementation reports. From a formalpoint of view, the institutional provisions of the Action Plans look very much alike,with the exception that the PCA structures cannot adopt binding decisions, whilst theAssociation Councils have the competence to do so (Lannon & van Elsuwege, 2004:55). The responsibility for monitoring the JHA provisions is attributed to a SubCommittee on Justice, Freedom and Security in the relations with the Easternneighbours. In the relations with the Southern neighbours the responsibility for JHAmatters is split between the Sub Committee on Justice and Security and the one onMigration and Social Affairs. In contrast to the formal provisions, practice hasrevealed important differences in terms of the intensity of the relations.

The JHA Action Plan adopted with Ukraine in 2001 and updated in 2006 containsa plethora of detailed measures15 and an accompanying monitoring instrument, theso-called scoreboard. Progress on JHA issues is discussed at regular meetings on JHA

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14 Information received in confidential interviews with third country representations (Brussels, May 2007).15 The revised EU-Ukraine Action Plan on Freedom, Security and Justice: Challenges and Strategic Aims contains

99 objectives and 224 joint actions. The document was made available to the author by an interview partner.

issues, which take place between officials at all levels of seniority. There is even aMinisterial Troika on JHA issues, which is convened at regular intervals with Ukraine.The discussions in the Sub-Committee meetings on JHA have evolved substantiallysince the first meeting in 2002. Whilst in the early days the discussions were of a moregeneral nature, nowadays the Sub Committee meetings are focused. The SubCommittee is used as a forum for discussing technical details and implementationproblems. This is by far the most intensive relation between an ENP partner countryand the EU in the area of JHA. At the opposite end of the spectrum one can situate therelations with Tunisia. Both the limited number of obligations subscribed to by thiscountry and the fact that the Sub-Committee on Justice and Security has not yet beenable to convene, point towards the difficulties the EU is facing in strengtheningcooperation with this country on JHA questions. The relations with Moldova andMorocco are situated between the two extremes16. Sub Committee meetings and otherworking party meetings are being held with both countries. The discussions with thetwo countries have bypassed the stage of ‘pure monologue’ and are moving towards apolicy dialogue. The two countries are willing to subscribe to concrete commitmentsand targets, and the parties are now seeking further ways to deepen their relations.

Overall what we observe at the steering level of the ENP is an attempt by the EUto move away from the conditionality approach of the past towards a relationshipbased on partnership. This ‘new approach’ strives for intensifying the policy dialoguebased on ‘benchmarks’. The success of this strategy depends a lot on the issue areadebated and on the country in question.

4.2 Transfer of legal and institutional models to non-member states

This type of activity is very prominent in the external dimension of JHA. It is theapproach that translates the extra-territorialisation strategy most directly. The relianceon this strategy is a result of the enlargement experience, during which period the EUwas engaged in an intensive exercise of norms transfer towards the new member states.The transfer of legal norms stemmed from the third Copenhagen criterion, which statedthat to become an EU member, the entire acquis needed to be transposed into thedomestic legal order of the accession states. With respect to JHA this meant that the newmember states had to transpose the entirety of Titles IV TEC containing the provisionson asylum and immigration and Title VI TEU on police and judicial cooperation intotheir legal systems. As a consequence of the incorporation of the Schengen provisions

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16 The dialogue with Morocco on migration issues constitutes an exception in this regards, provided thatnegotiations on readmission/irregular migration have been ongoing for a while now.

into the Treaty of Amsterdam, they also became part of the acquis. During the accessionprocess it became apparent that it was not enough to demand that the candidatecountries incorporate the legal standards; instead the EU needed to provide them withfinancial assistance and expertise to support the implementation of the provisions. Thetransfer of institutional models in the JHA area, through the pre-accession toolkit,consisting of PHARE funding, Twinning and TAIEX, became important in the processof bringing the accession countries closer to EU standards

The transfer of legal norms to non-member states occurs when the EU demands non-member states to adapt their domestic legislation to acquis provisions or internationalstandards. The transfer of international standards is frequent in the JHA area, as theJHA acquis contains numerous international instruments. Annex I illustrates that aplethora of international conventions on JHA-related issues exist, which the EUattempts to transfer to the ENP countries through the Action Plans. When consideringthe table in Annex I we conclude that the overall balance sheet of the EU’s norm-promotion efforts in this area is successful. Yet, the fact that a country has become partyto a Convention does not necessarily mean that it complies with the obligationscontained in the Conventions; for example a number of the neighbouring countries havebeen seriously deficient in fulfilling their obligations under the Geneva Convention onthe Status of Refugees . There is also a difference in norms promotion based on thewhether the country is a southern or an eastern EU neighbour, because in the easternregion the EU extensively draws on Council of Europe conventions and standards.

The main tool used for promoting institutional models to the partner countries isTwinning. The latter is a cooperation tool aimed at developing the capacity of thepublic administration in those countries. As the projects are carried out by equivalentinstitutions in EU member states, the aid is provided on a ‘peer-to-peer’ basis.Twinning was made available to the neighbouring countries when the ENP waslaunched. The basic rule is that a Twinning project must contain an element ofalignment with the acquis. In contrast to enlargement during which alignment had tobe 100%, the extent of alignment with the acquis sought in ENP countries depends onthe issues under discussion and the country’s willingness to approximate itslegislation. Twinnings are demand-driven, which means that the non-member statescan influence in which sectors they are realised; they do, however, need to be relatedto the domains of cooperation mentioned under the PCA or the AA. Twinning wasfrequently used in the sector of JHA during pre-accession, which is confirmed by thefact that 367 of 1,674 Twinnings were carried out on JHA issues between 1997 and2006. This is by far the highest number of Twinnings carried out in a specific sector,the next one being agriculture and finance with 281 projects each17.

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17 Data retrieved from the Twinning Thesaurus, 2007 version. CD Rom was made available by Europeaid.

In the relations with the ENP countries, 12 Twinnings have been planned on JHAmatters for the period of 2004-07. As to the Twinnings being carried out in ENPcountries: three are being implemented in Morocco – one on border management, oneon consumer protection and one setting up a Financial Intelligence Unit. Twinningshave also been planned with Jordan in the area of penitentiary reform and combatingterrorism. Moldova has demanded a Twinning to support the Parliament and onerelated to the administration of justice (e.g. reform of the penalty system). WithUkraine a Twinning is planned on the introduction and development of qualitymanagement within the Ukrainian Police (Ministry of Interior)18. Twinnings oncustoms can be found in most neighbouring countries. For the time being the demandfor Twinning on JHA issues is not that high in the ENP countries owing to thesensitivity of the issues dealt with. This contrasts strongly with the demand for TAIEXactivities, which for its part has been high. TAIEX assistance covers a number ofshort-term activities, such as seminars, study visits and workshops. One of theobjectives of the TAIEX activities is to prepare the ground for the subsequentlaunching of Twinning activities. In 2006 TAIEX study visits have been planned forJordanian officials to EU member states both on penitentiary reform and oncombating terrorism19. There were also TAIEX seminars organised on trafficking inhuman beings and a study visit on the fight against corruption.

With respect to the provision of legislative and institutional models we observe aprolongation of the modes of interaction developed during eastern enlargement.There is a strong reliance on the transfer of legislative provisions to non-memberstates, which find their origin either in the acquis or in international standards. Yetthe way in which these institutional models are applied in the ENP countriesdifferentiates from what we observed during enlargement, as they are more tailoredto the needs of the individual countries.

4.3 Funding and technical assistance for JHA activities in the ENP

Funding for external assistance activities in the EU is provided based on thegeographical financial instruments, and not on a sector basis. Simultaneous with theintroduction of the ENP a new financial instrument, the European Neighbourhood andPartnership Instrument (ENPI), was introduced. This instrument was to finance theactivities with the Neighbours that had previously fallen under two different budget

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18 This information was received during an interview with Europeaid officials in May 2007. They were veryhelpful in providing me with a number of statistics on Twinnings in the ENP countries.

19 This information was also contained in an information leaflet I received from Europeaid on the occasion ofthe interview in May 2007.

lines, TACIS in the former Soviet Union and MEDA in Mediterranean countries. Themajor part of ENPI funding goes to financing bilateral technical assistance activities inthe neighbouring countries. The ENPI also contains a regional envelope forcooperation in both the East and the South, a cross-border cooperation instrument forfinancing activities in border regions including both member states and non-memberstates and an inter-regional cooperation initiative. Moreover, a Governance Facilityhas been introduced in the ENP. This instrument allocates additional financialassistance to countries that are willing to introduce reforms in the governance area.

External assistance under the ENPI is subject to a multi-annual programming cycle.Every six years the EC drafts Country Strategy Papers, which elaborate the assistancepriorities for the following six years; in spring 2007 the documents for the years 2007-2013 were released. These documents are adopted following consultations with thepartner countries and the other international donors. The National IndicativeProgrammes set out the priority areas of assistance for a three-year period, and theyallocate the amount of funds to be distributed to specific projects. The Annual WorkProgrammes further specify the Indicative Programmes and allocate the funds to theprojects that will be carried out during the following year. There are different modalitiesfor providing technical assistance to non-member states, but for the most part privatecounterparts (consultants or international organisations, etc.) carry out the activities.The main criticisms of the current funding system focus on the rigidity of the system,preventing the money from being allocated flexibly in the case of an emergency.Moreover, there are a number of problems concerning the limited absorptive capacityof the partner countries and the amount of time that the whole process takes.

Although it is difficult to compare the sums attributed to JHA technical assistanceacross the ENP countries, some interesting conclusions can be drawn from theoverview provided in Annex II. The fact that justice projects feature prominently inthe democracy/governance component in all ENP countries and that JHA is a prioritysector for administrative capacity-building and regulatory alignment in theNeighbourhood reveals that JHA-related funding constitutes an important part ofENPI assistance overall. This observation is confirmed, if we consider the number ofprojects financed under the regional and the cross-border programmes of the ENPIdealing with JHA issues. Indeed, the projects in the regional programmes lay a strongemphasis on networking law enforcement authorities in the respective regions, so thatthey can combat common challenges in a more efficient manner. In addition, themanagement of external borders is an important priority in the cross-bordercooperation programmes. These programmes are meant to intensify the contactsbetween the ENP countries and their immediate neighbouring countries in the EU.

Apart from the funding granted under the geographic budget lines, technicalassistance can also be financed through the thematic budget lines. Amongst the

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thematic budget lines the one on migration and asylum is most directly linked toactivities in the JHA field. The thematic budget line on migration and asylum supportsactivities in the neighbouring countries that are aimed at enhancing their protectioncapacities, fighting irregular migration and accompanying readmission agreements,promoting well-managed labour migration, fostering the links between migration anddevelopment and protecting migrants against exploitation and exclusion exclusion(European Commission, 2006e). The thematic budget line on human rights, which isgoing to replace the EIDHR, will make funds available for projects in the area ofcriminal justice. The granting of these ‘human rights’ funds is different from thetraditional technical assistance under the ENPI, as the disbursal of funds is not madedependent upon the consent of the partner countries’ authorities (Council of theEuropean Union, 1999). Hence the money can be used to finance access to justiceprojects supporting NGOs or bar associations. Lastly, under Article 4 of the StabilityInstrument, the EC can make available technical and financial assistance in the contextof stable conditions for cooperation in the pursuit of specific aims, such as “threats tolaw and order, to the security and safety of individuals, to critical infrastructure and topublic health” (Council of the European Union, 2006: 4). Article 4 makes explicitreference to the possibility of funding activities in the area of counter-terrorism,narcotics, customs and immigration law and law enforcement issues more generally.

The lack of a specific funding instrument attributed to funding the externaldimension of JHA is one of the major obstacles to its realisation. One way in which JHAspecific money can be made available to non-member states is through the internalprogrammes, on law enforcement cooperation. Under these programmes organisations(governmental and non-governmental) in the EU member states can apply forimplementing a project in which they cooperate with partner organisations from ENPcountries. The difficulty for non-member states is that under these calls for tender theycannot submit project proposals themselves; they are dependent on EU member statesasking them to join. When a topic is of interest to both an ENP and an EU country, thistype of cooperation does occur, such as the AGIS projects on anti-trafficking in whichEU member states cooperated with Moldova and Ukraine. A further example for aninternal instrument that includes a reference to non-member state participation is thecall launched under the ‘Commission programme for the prevention of and response toviolent radicalisation’. This programme description specifies:

Trans-national projects of the type described above aimed at tackling violent

radicalisation, which involve partners in at least two member states or at least one

member state and an applicant country or a country within the Euro-Med region,

will be given preference20.

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20 http://ec.europa.eu/justice_home/funding/2004_2007/radicalisation/doc/call_2007_en.pdf, page 4. Consultedon 15 June 2007.

A number of interviewees in the European institutions confirmed that a lack offinancing was one of the major problems in realising the external dimension. Thecurrent system makes the funding of JHA-related projects entirely dependent upon themoney managed by RELEX. There is apparently an ongoing debate on whether moreJHA ‘internal’ money could be made available for cooperation with non-member states.

In the area of technical assistance, we once again find evidence for the existence ofan interesting mix of measures based on the logics of conditionality and social learning.A further interesting finding in the context of funding is the difficulty that the EU isfacing in establishing financial instruments to pay for JHA specific measures in theexternal dimension. In the next section, we will flag some of these JHA-specific tools.

4.4 Inter-governmental negotiations

In the context of enlargement, ‘gate-keeping’ refers to the process of granting orrefusing a candidate country to reach the next stage in the accession process. It is themost powerful instrument that the EU can use to foster compliance on the side of thepartner states. In the interactions with the ENP countries, the EU cannot use this tool,as there is no accession prospect for the countries concerned. In fact the ENP wasexplicitly conceived as an alternative to, and not a preparation for enlargement,although recently the ENP official language has changed. In the case of European (i.e.Eastern) neighbours, future membership is not completely ruled out in future. So whenit comes to negotiating on JHA issues with ENP countries, the EU has to find ways ofdevising package deals that contain sufficiently attractive incentives for the partnercountry to adopt their behaviour to the EU’s demands. Within the ENP a certainamount of issue linkage takes place, as progress in one area can be rewarded with aconcession in another area. For example cooperation on the environment can berewarded by facilitating access to the internal market. Although inter-linkage betweenissues is always an option for the EU, at times the partner countries explicitly ask forconcessions on the issue area under discussion. For example in the case of negotiationson JHA the partner countries frequently ask for rewards in this area. The incentives theEU can offer in the JHA area are money, mobility partnerships and capacity-building.It is important to note that negotiations only occur in issue areas in which both sides,the EU and the partner country, have a strong interest and when both have somethingto offer to the other party. In the next section we will take a closer look at two casestudies, irregular immigration and terrorism, which will show us how the EU devisespackage deals that are supposed to respect the wishes of both parties.

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4.5 Two mini-case studies

4.5.1 Irregular Immigration

In the area of irregular migration, the EU has declared the negotiation ofreadmission agreements as a priority matter in the relations with the ENP countries.The objective of concluding a readmission agreement with Morocco has led to theconvening of at least nine rounds of negotiations21, but for the time being no agreementhas been finalized (Bouteillet, 2003). Morocco has demanded a number of concessions,amongst them visa facilitation and a substantial increase of funds devoted to socio-economic development. Furthermore, it has demanded an increase of funds to dealwith the transit migrants from Sub Saharan Africa. A number of participants in thenegotiations with Morocco have confirmed that these talks have contributed to theelaboration of the so-called ‘global approach’ on migration, which the EU has beenadvocating since the Hampton Court Summit in November 2005. The global approachconstitutes an explicit attempt to devise package deals in the area of mobility. It triesto satisfy the demands of the EU and those of the partner countries. In other words, itstrives to balance the EU’s desire to get the partner countries to do more in the fightagainst irregular migration with the partner countries’ demands for opening channelsof legal migration, visa facilitation and socio-economic development.

The policy discourse surrounding the need for a more comprehensive, balanced orglobal approach to migration is by no means a novelty in the EU, but it has only led tothe elaboration of concrete policy measures in recent times. In terms of the productionof policy papers, the global approach has been developing at an astounding speed overthe last two years. The first document to be published was the CommissionCommunication following up the Hampton Court European Council Conclusions(European Commission, 2005b). This document focuses specifically on cooperationwith the Mediterranean neighbours and the African states. It was complemented by aCommunication on ‘one year on in the implementation of the global approach’(European Commission, 2006f), which draws up a balance sheet of the first year ofimplementation of the global approach. The process of elaborating the global approachculminated in the adoption of two Communications, one on circular migrationmigration (European Commission, 2007b) and one on applying the global approach tothe neighbours in the East and the South-East (European Commission, 2007a) in May2007. These documents cross-reference to the other texts, and hence we are led toconclude that the four Communications together express the global approach.

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21 At the end of November 2005, eight rounds had taken place and in May 2006, a ninth one was convened(see http://www.libertysecurity.org/article614.html for details at the end of 2005). Consulted on 16 June 2007.

The Communication on circular migration and migration partnerships lists anumber of concessions in the area of irregular migration that the EU demands from thepartner countries (readmission, border management, exchange of information), and itenumerates the commitments that the EC and the member states could possibly make.In this context the Communication recommends improving channels of legal migrationto the EU (mainly for seasonal workers and the highly skilled), establishing mechanismsfor matching labour supply and labour demand, providing migration capacity-buildingand on the issuance of multiple entry visas for certain categories of people. Since therelations on migration questions are more advanced with the Eastern neighbours, wewill take a look at how the global approach has materialised in the relations with thesecountries. Overall we find a strengthened commitment on the side of the partnercountries to intensify the fight against irregular migration, expressed through theirwillingness to sign readmission agreements with the EU, and to conclude workingarrangements with Frontex. In return the EU commits itself to providing technicalassistance, capacity building, visa facilitation, visa policy and mobility partnerships.

In terms of concrete realisations one needs to mention firstly, the signing of areadmission and visa facilitation agreement with Ukraine. In the margins of the EU-Ukraine Cooperation Council, a readmission agreement was signed with Ukraine on 18June 2007. The readmission agreement sets out obligations and procedures for theauthorities of both Ukraine and the respective EU member state as to when and how totake back people who are illegally residing on their territories. The readmissionobligations cover nationals from Ukraine, the EU member states and those from partnercountries and stateless people. With respect to the latter two categories, a transitionalperiod of two years was agreed upon, before Ukraine has to readmit these categories ofpeople. The agreement also contains safeguards with regard to data protection and theprotection of fundamental human rights22. To ease the strain on the readmissionobligations for the Eastern neighbours, the EU is increasing the financial assistanceprovided to these countries in the area of migration and asylum. One area in which thelack of resources is particularly pronounced is that of reception facilities for asylumseekers and irregular migrants. Provided the identified gaps in the asylum systems thatresult both from a lack of resources and other protection related difficulties, the EU hasdeveloped the concept of Regional Protection Programmes (RPP) to tackle asylum issuesin a comprehensive manner. RPP combine elements of capacity-building, support forinfrastructures and training on human rights. A pilot RPP is being set up in UkraineUkraine (European Commission, 2005c; Human Rights Watch, 2006).

In return for the readmission agreement, an agreement on visa facilitation wassigned. The latter agreement limits the fee for a visa application to €35, which is definitelycheaper than the €60 foreseen in the Common Consular Instructions Instructions

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22 http://soderkoping.org.ua/page14834.html. Consulted on 16 June 2007.

(Boratynski et al., 2006; Szymborska, 2007: 278-279). Moreover, the agreement indicatesthat some Ukrainian citizens, in particular minors, disabled and others, can be exemptfrom paying the application fees. The Agreement also stipulates that all applications mustbe handled in a time frame of 10 days, whereby in individual cases this can be extendedto 30 days. The difficulty with this rule is that it does not start counting on the day onwhich the person had the first contacts with the embassy of a Schengen state. It is indeedthis pre-submission process that is cumbersome for the applicants, provided that all ofthe documents then need to be collected. Lastly, the agreement allows for grantingcertain categories of Ukrainian citizens, close relatives, lorry drivers, people on business,students, journalists and members of official delegations, multi-entry visas to the EU. Forthese categories the agreement also reduces the number of documents that are requiredto complete the visa application process. On the downside the analysts note that in theeyes of the Ukrainian population the agreement discriminates between the few who canbenefit from the simplified visa procedure, and the ordinary citizen, who cannot. InUkraine this seems to be interpreted as a sign that the EU prefers cooperating with theUkrainian elites instead of the population .

Secondly, with respect to operational cooperation, the EU provides directassistance to Moldova and Ukraine. Operational assistance is provided through theEU Border Assistance Mission, EUBAM, which the involved parties consider asuccess so far23. Operational cooperation is also being strengthened through theconclusion of Frontex working arrangements with the Eastern partner countries.Indeed, Frontex has the capacity to enter into agreements with non-member countries(Carrera, 2007; Jorry, 2007). According to Article 14 of the Frontex regulation, theAgency “shall facilitate the operational cooperation between member states and non-member states, in the framework of the European Union external relations policy”(Council of the European Union, 2004c: 5). The neighbouring countries are second inline after agreements have been concluded with the accession and candidatecountries. The first step in establishing relations with Frontex is the conclusion of aworking arrangement (protocols and/or memoranda of understanding). The first-everworking arrangement was concluded with Russia in November 2006. In the marginof the JHA Council in June 2007, a working arrangement was also concluded withUkraine. According to S. Carrera (2007: 18), informal contacts have also beenestablished between Morocco, Algeria, Egypt and Lebanon. Before Frontexoperations can take place, bilateral agreements need to exist between the country incharge of the operation and the neighbouring countries, but unfortunately the contentof these agreements is not publicly known (Carrera, 2007: 20).

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23 See Joint Press Release by the Border Control and Law Enforcement Services of Moldova and Ukraine andthe European Union Border Assistance Mission at http://www.delukr.ec.europa.eu/press_releases.html(retrieved 4 July 2007). Confirmed during interviews in Brussels in May 2007.

Thirdly, the EU is attempting to make concessions with respect to facilitating thearduous visa procedures. The agreement on visa facilitation initialled with Moldovaon 25 April 2007, introduces a number of aspects aimed at easing the visa issuingprocedure24. For example the agreement foresees the creation of a Common VisaApplication Centre. The Common Visa Application Centre, which is located in theHungarian embassy in Chisinau, has been joined by Austria, Slovenia, and Latvia, andin the future Denmark and Estonia. This Centre will deliver Schengen visas toMoldavians on behalf of the aforementioned EU member states. Provided that manyof the participating countries do not have diplomatic or consular representations inChisinau, this Centre will provide an opportunity for Moldovan citizens to lodge anapplication in their country. They no longer have to travel to Ukraine or Romania toapply for a Schengen visa.

On the whole the EU is trying to make concessions on visa policy, because it knowsthat the issue of mobility is crucial for the neighbouring countries (Grabbe, 2000;Jileva, 2003). The Commission acknowledges this in the Communication onenhancing the relations with the ENP countries . The analysis of the realisation of theglobal approach in the relations with the Eastern neighbours reveals that the EU isusing a number of instruments in the field of migration to make cooperation moreattractive for the partner countries. The EU is providing the partner countries withknow-how and support on how to manage migration and asylum in the framework ofthe Regional Protection Programme, it is attempting to facilitate movement betweenthe EU and the partner countries, and it offers operational support for bordermanagement, as in the case of EUBAM. On the whole the negotiations on irregularmigration are characterised by an interesting mix of material incentives and thepromotion of soft skills. It remains to be seen how successful this strategy will be infostering change in the behaviour of the partner countries.

4.5.2 Terrorism

European Commissioner Franco Frattini has proclaimed that “we must build anetwork of security against the network of terror” . One component of this ‘networkof security’ is the establishment of closer contacts with the partner countries in theNeighbourhood. One of the main techniques in this regard is the intensification ofpolitical dialogue. For the time being the EU has chosen a two-pronged approach tothe fight against terrorism in the Mediterranean, a multilateral and a bilateral one. Inthe framework of the ‘Barcelona plus Ten’ meeting in November 2005, the EU

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24 On the Agreement with Moldova see: http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/07/153&format=HTML&aged=0&language=EN&guiLanguage=en. Consulted on 2 July 2007.

adopted a ‘Code of Conduct’ in the fight against terrorism25. Whilst the Code has beencriticised for containing neither a definition nor any concrete obligations to enhanceeffective international cooperation, it is nonetheless important, because it contains acommitment by the Barcelona process participants to condemn all forms of terroristacts and it reiterates their intention to tackle the causes of terrorism andradicalisation (Bicchi & Martin, 2006; Reinares, 2006). Moreover, it lists a number ofinternational instruments and standards, mainly concluded in the framework of theUN that the partners need to respect in the fight against terrorism. That this fight isnot always carried out in accordance with international human rights standards hasbeen pointed out on numerous occasions by human rights organisations, such asAmnesty International and Human Rights Watch26.

On the bilateral level we have witnessed the insertion of clauses on counter-terrorism cooperation in agreements with non-member states. These clauses aremodelled on the Standard Counter-Terrorism clause agreed by Coreper (Council ofthe European Union, 2004a)27. The clause reiterates the commitment of the parties tointensify their fight against terrorism. Moreover, the clauses acknowledge that the UNdocuments should serve as a reference point in the fight against terrorism. In additionthe clauses contain a commitment by the states to enhance the exchange ofinformation on terrorist groups and the exchange of views on the means and methodsused to fight terrorism28. The list of countries with which the EU has sought to includea counter-terrorism clause, has not been made public to date. A counter-terrorismclause has been inserted in the Association Agreement concluded with Algeria, and inan exchange of letters on the fight of terrorism with Lebanon29. Moreover, all ENPAction Plans contain an action on enhancing the fight against terrorism.

In exchange for enhanced political dialogue on terrorism, the EU offers to increasethe exchange of information and the transfer of best practices with and to theMediterranean countries. In this regard the EU can offer the conclusion of cooperationagreements with the agencies and coordinating bodies, Europol and Eurojust. TheENP countries have explicitly voiced their interest in expanding these contacts with theEU . Europol can conclude strategic and operational agreements with non-memberstates based on the Council Decision of 27 March 2000 and the subsequent updatesextending the range of countries to Moldova, Ukraine and Morocco (Council of the

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25 http://ec.europa.eu/external_relations/euromed/summit1105/terrorism.pdf. Consulted on 17 June 2007.26 See for example Amnesty on the Algerian authorities

http://web.amnesty.org/library/Index/ENGIOR610062002?open&of=ENG-2D3. See also Wolff, 2006a.27 ‘Coreper’ is The Permanent Representatives Committee (Article 207 of the Treaty establishing the European

Community). Coreper is responsible for preparing the work of the Council of the European Union. It consistsof the member states' ambassadors to the European Union (‘Permanent Representatives’) and is chaired bythe member state that holds the Council Presidency.

28 http://www.statewatch.org/news/2005/may/eu-terr-clauses.pdf. Consulted on 17 June 2007.29 http://ec.europa.eu/external_relations/news/patten/sp02_288.htm. Consulted on 17 June 2007.

European Union, 2004b; Europol, 2004c). The main difference between an operationaland a strategic agreement relates to the exchange of personal data. Under a strategicagreement the exchange of personal data is not possible, whilst it can be done underthe terms of the operational agreement (Rijken, 2001). The only ENP country withwhich the negotiations on a strategic agreement have been concluded is Moldova. MostENP partner countries have expressed their interest in negotiating operationalagreements with Europol, but for this to happen a number of obstacles in the area ofdata protection need to be eliminated (Europol, 2004b).

In the area of judicial cooperation the EU offers the Mediterranean countriesopportunities to enhance the contacts between magistrates and judges on both sides ofthe Mediterranean. The main incentives the EU can offer in this area are Eurojustcooperation agreements and the setting up of European Judicial Network contact points(EJN). Eurojust can negotiate cooperation agreements with non-member states. For thetime being Eurojust has not concluded any agreements with Mediterranean countries,as data protection continues to constitute a problem in all ENP countries (Council of theEuropean Union, 2007b). In the absence of a cooperation agreement Eurojust canconvene – subject to a unanimous vote of the Eurojust College of Prosecutors – ameeting with prosecutors from a partner country, if there is evidence that cooperationwith that country is necessary for prosecuting a case of cross-border crime. Apparentlysuch working meetings have been convened with Morocco on terrorism. The legal basisfor convening such meetings is the existence of bilateral agreements on mutual legalassistance between EU member states and the respective non-member countries. This ispossible, because Eurojust prosecutors are endowed with the same powers as nationalprosecutors. They can hence rely on the mutual legal assistance agreements concludedbetween the non-member country and their member state of origin. Lastly, there existsthe option of establishing EJN contact points in ENP countries through which judicialcontacts between the EU states and the ENP countries can be facilitated.

Apart from promising more exchange of information on terrorism, the EU is alsoan active provider of capacity-building in the fight against terrorism at the bilateraland at the multilateral level. At the bilateral level the ENP countries are among themain beneficiary countries of counter-terrorism technical assistance projects. Infact, Algeria and Morocco were the two countries in which pilot projects oncounter-terrorism were conducted conducted (Council of the European Union,2007a). These projects focus on administrative capacity-building; they normallyconcentrate on police cooperation, justice cooperation, customs cooperation andborder management. The projects normally also include efforts to upgrade anti-money laundering legislation and activities on combating the financing ofterrorism. It is at times difficult to clearly separate technical assistance on terrorismfrom that provided to combat other forms of organised and economic crime30.

30

Nicole Wichmann


At the regional level we find the Euromed Police and Justice projects. TheEuromed Police project is being implemented by the European Police College(European Police College, 2006). Little information is available about thisprogramme. What is known is that the CEPOL project focuses on transmitting bestpractices in the area of policing to the Mediterranean partner countries.31 A shortglimpse at the Euromed Synopses confirms that the fight against terrorism is one ofthe issues on which training sessions have been carried out32. In the framework of theEuromed Justice regional project the EU cooperates with the European Institute forPublic Administration, EIPA, in carrying out seminars on a number of questionsrelated to terrorism. A strong focus in the Euromed Justice programme has been laidon prosecuting the financing of terrorism. The seminars are geared towards high-levelmagistrates in the ENP countries. They should then disseminate the knowledge theygained in these seminars to the lower-level judges in their home countries33.

One the whole in the fight against terrorism we observe a tendency on the side ofthe EU to intensify contacts with the Mediterranean countries on the bilateral and theregional level. In exchange for political dialogue on terrorism the EU offers anintensification of information exchange, technical assistance and capacity-buildingfor the law enforcement authorities in the partner countries. For the most part the EUhas to rely on transmitting ‘software’ to the partner countries in the form of dialogueand capacity-building. The reason for this is that the ‘hardware’, such asinfrastructure support, intelligence, military, policemen and gendarmes, are not partof the EU competences. Good contacts with the member states are indispensable inthe international fight against terrorism, because many partner countries areinterested in the ‘hardware’, which only the member states can provide.

These sections on negotiations have showed that in the areas of both irregularmigration and terrorism we witness an increased reliance on instruments of sociallearning to make the partner countries more willing to cooperate with the EU. Itremains an open question whether these incentives will really entice the partnercountries to change their behaviour. It also became apparent in this section, thatwhen coming up with ‘incentives packages’ the Commission is constantly confrontedwith its limits in terms of competence. All of the documents issued on the globalapproach and on the fight against terrorism manifest the enormous caution withwhich the Commission goes about cooperation in this area.

31



30 Information received from Commission official in May 2007.31 CEPOL is the European Police College. CEPOL brings together senior police officers across Europe with the

aim to encourage cross-border co-operation in the fight against crime, public security and law and order.32 See for example the Euromed synopsis of 4 March 2004:

http://ec.europa.eu/external_relations/euromed/synopsis/synopsis262_en.pdf. Consulted on 4 July 2007.33 Information on Euromed Justice can be retrieved from the following website http://www.eipa.eu/en/

topics/show/&tid=159. Consulted on 4 July 2007.

5. Conclusions

This paper has attempted to convey the message that the ENP is a multi-layeredpolicy. In fact one could allege that the ENP is an umbrella that has come toencompass a number of different policy objectives and instruments under one and thesame heading. The ENP is an amalgamation of different policy objectives andinstruments that need to be analysed and considered in their own right. The argumenton the multi-layered nature was made by taking a look at the origins and the majorpolicy documents making up the policy. The argument was advanced that since theoutset two discourses have surrounded the ENP, one that considers it a securityinitiative and another that sees it as a broader socio-economic transformation project.These two discourses translate into conflicting strategies: firstly, a long-term strategyof enhancing security by promoting democracy and the rule of law in neighbouringcountries and secondly, a short-term one that advocates punctual short termmeasures to strengthen the capacities of law enforcement authorities to tackle a broadrange of threats spanning the entire security continuum. It is at the level of the policyobjectives that political guidelines need to be formulated that take into account thepotential trade-offs between the two objectives.

Despite these opposing logics the paper goes on to allege that there is a unifyingobjective that is common to all JHA measures. Indeed, the objective of‘extraterritorialising’ the management of internal security threats to the neighbouringcountries permeates the entire policy initiative. There are, however, two differentlogics of action that underlie the extraterritorialisation objective, one draws onconditionality and the other one on social learning. The paper goes on to show thatthe four categories of conditionality instruments are also inspired by social learning.

The most interesting finding of this paper pertains to the enormous diversity thatwe find in the relations with the various partner countries. In fact the practice withrespect to benchmarking and monitoring of progress differs from country to country.At the one extreme we find focused discussions, such as with Ukraine, whereas at theother end, exemplified by Tunisia in this study, there is no dialogue for the time being.The way in which progress is monitored combines elements of conditionality andsocial learning. At the level of the transfer of legislative and institutional models, wefind an attempt to entice the ENP countries into incorporating EU or internationalstandards in their domestic legislation. The ‘flanking measures’ accompanyinglegislative approximation are Twinning and TAIEX. With respect to theimplementation of these instruments the EU strives to achieve a high level of co-ownership and dialogue. Respecting the partnership principle is important, because

32

Nicole Wichmann


it is only in this way that the EU can adapt the instruments to the circumstances inthe partner countries. A third finding was that the amount of technical assistance andfunding dedicated to JHA measures in ENP partner countries has substantiallyincreased over the last years, as the section on funding the external dimension of JHAillustrated. Lastly, in the context of technical assistance we find an interesting mixtureof norms transfer and capacity-building, which is by definition inspired byconditionality and social learning.

The paper spends some space elaborating on the fourth conditionality-inspiredinstrument, namely that of negotiations. It has been argued that negotiations withENP countries need to focus on the costs and benefits within specific sectors, as thereis no membership prospect that outweighs the costs of making concessions in any onegiven sector. The EU draws up package deals to get partner countries to cooperate onthe questions of irregular immigration and terrorism. As a matter of fact, the EUmixes a number of material incentives and soft measures, such as capacity-building,to influence the partner country’s cost/benefit calculation. In the area of irregularmigration the EU has proved some creativity in providing incentives that might be ofinterest to the partner countries. On terrorism-related questions, however, the rangeof incentives is more limited; this is probably a consequence of the absence of EUcompetence in this field. Overall this overview of negotiations concludes that itremains to be seen if the incentives are strong enough to entice the partner countriesto adapt to the EU’s demands.

What comes to the fore in the whole paper is the enormous diversity that thecommon policy framework, ENP, has to accommodate. This diversity constitutes anobstacle to the EU’s capacity to project itself as an actor in the international arena.The analysis reveals that there are major differences across policy issues andcountries. It is an open question whether, as time passes, the differences will narrowor whether they will become more accentuated. A number of interesting researchtasks result from this alleged diversity. There is indeed a need for analysts to carry outrigorous comparative work identifying which factors account for the variationbetween the countries and the issue areas, and specifying the conditions under whichsuccessful JHA cooperation can emerge.

33



6. Policy Recommendations

This analysis of the JHA elements in the ENP has led us to formulate a number ofpolicy recommendations:

• The EU should draft an Action-Oriented Paper (AOP) on Cooperation with theENP countries that provide us with a better insight into what the EU is doing inthis area. The AOP should also include references to the state of security-sectorgovernance in these countries (judicial oversight, questions of accountability). Itwould be desirable that, in parallel to the AOPs, human rights compliancereports would be released on the countries with which the EU is seeking toexpand cooperation on JHA issues34.

• The idea of drawing up an AOP on counter-terrorism cooperation with theMediterranean countries should be pursued. The fight against terrorism is thearea in which the tensions between the various objectives are most likely to occur.

• In terms of the monitoring and benchmarking provisions, the EU shouldconsider moving towards the Ukraine JHA Action Plan model with all countries,as this seems to provide a fruitful framework for dialogue.

• If the EU is serious about building an external dimension to JHA it will have tothink about the financing of these activities. It cannot continue to be entirelydependent on the external relations financial instruments.

• As regards negotiations one is led to conclude that the EU will need to make moresubstantial concessions on JHA issues to change the cost/benefit calculations of thepartner countries. The Commission Communication on mobility partnerships andcircular migration undeniably constitutes a step in the right direction, but for it toproduce tangible effects it probably has to offer more. For obvious reasons thequestion of the incentives is intrinsically linked to that of competence distributionbetween the EU and the member states. It is a well known fact that such questionscan only be addressed in a more comprehensive framework, that of Treaty Reform.

• There is a need to increase the dialogue between the various actors involved inthe ENP and the external dimension of JHA. The flow of information betweenthe strategic level at which the policy objectives are formulated and the level ofpolicy implementation needs to be enhanced. This would allow for a morecoordinated use of the entire spectrum of policy instruments. It is imperativethat the EU do this, if it wants to be taken seriously as an international actor.

34

Nicole Wichmann


34 This recommendation is voiced in the draft report of the EP LIBE Committee (European Parliament -Committee on Civil Liberties and Justice and Home Affairs, 2007).

Annex I. Legislative approximation efforts35

35



35 These tables have been adapted from (Lavenex & Wichmann, 2006).

Relevant international conventions in the areas of asylum & trafficking in human beings

CountryRefugee Status

Convention 1951

Protocol

on Refugee Status

1967

European

Convention

on Human Rights

1951

Organisation

of African Unity

Refugee

Convention

Signed

Rat.

Acc(a)

Succ(d)

Signed

Rat.

Acc(a)

Succ(d)

Signed Rat. Signed Rat.

Algeria 1963d 1967a 1974Armenia 1993a 1993a 2002Azerbaijan 1993a 1993a 2002Belarus 2001a 2001aEgypt 1981a 1981a 1980Georgia 1999a 1999a 1999Israel 1954 1968aJordan

Lebanon 1981Libya

Moldova 2002a 2002a 1997Morocco 1956d 1971a 1974Syria

Tunisia 1957d 1968d 1989Ukraine 2002a 2002a

International conventions on fighting trafficking in human beings

International Convention

on Transnational Organised Crime

(Palermo Convention)

Optional Protocol on Trafficking

in Persons, particularly Women

and Children

Algeria 2002 2004Armenia 2003 2003Azerbaijan 2003 2003Belarus 2003 2003Georgia 2006 2006Egypt 2004 2004Israel 2006 signed in 2001, not ratifiedJordan signed in 2002, not ratified not signedLebanon 2005 2005Libya 2004 2004Moldova 2005 2005Morocco 2002 not signedPA N/A N/ASyria signed in 2000, not ratified signed in 2000, not ratifiedTunisia 2003 2003Ukraine 2004 2004

36

Nicole Wichmann


36 The Group of States against Corruption (GRECO) was established in 1999 by the Council of Europe to monitorStates’ compliance with the organisation’s anti-corruption standards.

International conventions and monitoring mechanisms on corruption

United Nations

Convention

Against

Corruption

2003

Council

of Europe

Criminal Law

Convention

Council

of Europe

Civil Law

Convention

GRECO36

OECD

Anti-Corruption

Network for Transiti

on Economies

(ACN)

Algeria RatificationArmenia Ratification Ratification Ratification x xAzerbaijan Ratification Ratification Ratification x xBelarus RatificationEgypt RatificationGeorgia Signature Ratification x xIsrael SignatureJordan RatificationLebanon

Libya SignatureMoldova Signature Ratification Ratification xMorocco Ratification - -Palestine - - - -Syria Signature - -Tunisia Signature - -Ukraine Signature Signature Ratification x x

* Information retrieved from 2007 Report of US State Department can be found onhttp://www.state.gov/p/inl/rls/nrcrpt/2007/vol2/html/80886.htm

International instruments on money laundering*

Compliance

with FATF

Recommen-

dations

1990 Council of Europe

Convention on laundering,

search, seizure and confiscation

of the proceeds from crime

1999 UN

Conv.

on Financing

of Terrorism

Membership

in a Peer Review

Mechanism

Algeria Ratification MENA-FATFArmenia Partially Yes Ratification MoneyvalAzerbaijan Partially Yes Ratification MoneyvalBelarus Ratification Eurasian GroupEgypt Yes Ratification MENA-FATFGeorgia Yes Yes MoneyvalIsrael Yes RatificationJordan Ratification MENA-FATFLebanon Yes No MENA-FATFLibya RatificationMoldova No Yes Ratification MoneyvalMorocco Ratification MENA-FATFSyria Ratification MENA-FATFTunisia Ratification MENA-FATFUkraine Yes Yes Ratification Moneyval

Annex II. Funding the JHA elementsin ENP countries

37



Country

Total

allocation

(mio euro)1

JHA allocation

(mio euro)Specification of activities

Algeria 22017

24

Justice projectSupporting activities to the AssociationAgreement (migration, organized crimerelated measures mentioned)

Armenia 98.4

29.52 Democracy/ GoodGovernance29.52 Regulatory Reformand Administrative CapacityBuilding

Justice listed as one sub priority

JHA (border management and migration)mentioned as areas in which administrativecapacity building is necessary

Azerbaijan 9230 Democratic Development/Good Governance

Rule of Law and Justice Reform listedas one priority. Also mentioning of publicsector reform to enhance fight againstcorruption and fight againstorganized crime

Belarus 2014 Social and EconomicDevelopment

Administrative capacity building on JHAissues mentioned as a possible targetfor support

Egypt 55810

13

Modernisation of Administrationof Justice and enhancement of securityGood Governance and Decentralisation(fight against corruption one element)

Georgia 120.431 Democracy, Rule of Lawand Governance

Sub priority 2 on Rule of Law and CriminalJustice Reform.Sub priority 3 on Good Governanceand Administrative Capacity Building(incl. fight against corruption).

Israel 82 acquis related activitiesin key ministries

JHA mentioned as one sector in whichIsraelis are interested in cooperating.

Jordan 265

17 Political reform, democracy,human rights, good governance,justice and co-operationin the fight against extremism

30 Good Governance,Transparency, Regulatoryalignment

JUST – strengthening capacityof the judiciary Support to Amman message(against terrorism and extremism)

Support to implementing Action PlanProgramme (fight against corruption,organized crime, terrorism and financingof terrorism).

Lebanon 187

10 sub-priority 2 on Justice,Liberty and Security.Support efficiencyand independenceof the judiciary

Activities in area of justice reformand penitentiary reform.

Libya2 8

Moldova 209.7

52-73 Supportfor DemocraticDevelopment and GoodGovernance31-41 Administrativecapacity-buildingand regulatory reform

Activities in the area of justice reformand fight against corruption are mentioned.The areas of asylum/migration and bordermanagement are mentioned in this context.

Morocco 65420 Governance and humanrights50 Vocational Training

Support for Ministry of Justice

One of the measures to combat sourcesof emigration in the long run

Palestinian

Authority2 632

38

Nicole Wichmann


1 Information retrieved from: http://ec.europa.eu/world/enp/pdf/country/0703_enpi_figures_en.pdf (consultedon 13 June 2007).

2 Planning figures only. Since medium-term programming is not possible for the Palestinian Authority andLibya, no Strategy Papers and Indicative Programmes have been adopted. Co-operation with Libya willonly be fully activated when necessary preconditions are in place.

3 Reference to this number can be found in the one year update to the global approach on migration(European Commission, 2006d).

4 The thematic programming documents are not yet available at time of writing (19 June 2007).

Country

Total

allocation

(mio euro)1

JHA allocation

(mio euro)Specification of activities

Syria 130 10 Modernising the judiciary

Tunisia 300 30 for Policy Action Plan Covers the sections of the ENP APnot included in the following NIP (e.g. JHA)

Ukraine 494

148.2 Support for DemocraticDevelopment and GoodGovernance148.2 Support foradministrative capacity building and regulatory reform197.6 Support forinfrastructure development

Rule of law and judicial reform programme

Mentioning of migration/asylumand border management as priority sectors

Border management figures as oneof the sub priorities in this regard.

Regional

Programmes

Mediterranean

Eastern Europe

343

223.5

13 Justice, Security and Migration20-30% allocated to Borderand Migration Management,the Fight against TransnationalOrganised Crime,and Customs (20-30%)

ENPI Cross

Border

Cooperation

Initiative

583Border management and addressingcommon challenges

Thematic budget

line for enhancing

cooperation with

countries on

migration matters4

Commitment that up to 3% of ENPIwill be made available for migrationrelated issues3

Stability

Instrument4

Contains provisions on financing activitiesin the areas of terrorism and organizedcrime

Thematic budget

line on human

rights4

Some activities on access to justicecan be financed under this budget line.

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